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2016 (10) TMI 441 - CESTAT MUMBAI

2016 (10) TMI 441 - CESTAT MUMBAI - TMI - Non-fulfillment of export obligation - denial of exemption from duty under section 25 of Customs Act, 1962 - import of second hand rotary sizer - Export Promotion Capital Goods (EPCG) licence with eligibility for concessional rate of duty of 10% - conditions to be fulfilled under notification no. 28/1997 dated 1st April 1997 - failure to comply with installation of machinery so as to fulfill export obligation - whether is is justified to hold that usage .....

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pugned order based on a non-existent condition set aside - appeal allowed - decided in favor of appellant. - APPEAL No. C/465/2004 - A/90000/16/CB - Dated:- 8-3-2016 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri R. S. Paranjape, Chartered Accountant for the appellant Shri D. S. Maan, Asstt. Commissioner (AR) for the respondent ORDER Per C J Mathew M/s Indian Seamless Metal Tubes Ltd, the appellant, had imported a used rotary sizer valued at ₹ 4,23,65, .....

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at Customs Freight Station, Pune and the goods cleared on 28th November 1998 after furnishing bank guarantee of ₹ 8,13,424/- being 50% of duty foregone of ₹ 16,26,847/- 3. Appellant was proceeded against on two counts vide two different notices the first for failure to comply with condition no. 5 of notification supra which requires the installation of capital goods at the factory to be certified by the jurisdictional Assistant Commissioner of Central Excise within six months of com .....

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ote of in adjudication order, was rendered irrelevant. Commissioner of Central Excise and Customs (Appeals), Goa (Camp at Pune) vide order no. P/CUS/BUS/7/2004 dated 29th January 2004 confirmed the adjudication order. 4. An amount of ₹ 12,83,424/- was remitted towards duty liability. Appellant, while admitting to non-installation of machinery owing to necessity of shutting down operations and, discovering the lack of certain critical parts, applied to the Policy Relaxation Committee of Dir .....

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nd pointed out that it is now well-settled in law that exemption notifications are to be implemented strictly. The decision of the Hon ble Supreme Court in Commissioner of Customs, Hyderabad v. M/s Pennar Industries Ltd & Anr [2015-TIOL-162-SC-CUS] was cited in support. 6. Though the alleged contraventions are linked to exemption from duty under section 25 of Customs Act, 1962, it must be borne in mind that this exemption notification is a consequence of a scheme of the Foreign Trade Policy .....

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of the Department of Revenue too. Consequently, the decision of the Policy Relaxation Committee are, vicariously, a decision that the designated officers cannot distance themselves from or decline to acknowledge. 7. In this context, the observation of the Hon ble Supreme Court in re M/s Pennar Industries Ltd cited supra is noteworthy. 20) Though we have rendered this decision keeping in view the legal position discussed above, at the same time, we deem it necessary to observe that the Government .....

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e amendment; albeit through third party, such person should not be left high and dry. Therefore, necessary amendments are needed in such notifications making appropriate provisions to meet these types of eventualities. We are hopeful that the competent authority shall look into these aspects and cater for such situations as well so that unnecessary hardship is not caused to the bona fide assessees as well. 8. Further, in that judgment, the Hon ble Supreme Court noted that there are various condi .....

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